By Manny Frishberg, JTNews Correspondent
Should a pharmacist who opposes abortion be allowed to refuse to fill a prescription for the “morning after pill?” What about an infertility specialist rejecting treatments for a lesbian couple, or a county clerk whose religious beliefs are offended by performing same-sex marriages?
All these, (and a fourth involving a religious club in a Kent high school) are real cases that have been brought before the courts in recent years. And they were all discussed at a forum sponsored by the Pacific Northwest Regional office of Anti-Defamation League and the Cardozo Society, an organization of Jewish lawyers associated with the Jewish Federation of Greater Seattle. The lunch hour session brought more than 60 people, mostly attorneys, to the downtown Seattle office of Garvey Schubert Barer on Oct. 7.
Michelle Deutchman, ADL’s western states counsel, came up from Los Angeles to moderate the session, titled “When Rights Collide: How to Find the Balance.”
While most in attendance claimed some knowledge of the work of the ADL, Deutchman began by explaining a little about their four main areas of focus: fighting discrimination of all kinds, ensuring church-state separation, working against hate crimes, and battling extremist ideologies wherever they arise.
Deutchman had prepared fictionalized examples highlighting the issues in each of the four cases, and a set of questions that added a layer of nuance to the sample cases. She also provided fact sheets concerning the actual cases that they were drawn from, as well as supplemental information, ranging from the Washington State Board of Pharmacy rules to a list of decisions from around the country where the free exercise of religion had run into conflict with anti-discrimination laws and regulations, and Amicus briefs that the ADL had filed in some of the actual court cases.
“Some of these issues are on the cutting edge” of civil rights law, Deutchman told the group, adding that she looks forward to the day when her job is unnecessary. “That day is not here,” she said.
After presenting a brief overview on the subject – where and how to strike the balance when two sets of constitutional rights are in conflict—she divided the participants into groups, assigning each one of the scenarios for discussion.
The first hypothetical involved a 20-year-old woman who was afraid her contraceptive was unreliable and so had gotten a prescription for the morning-after pill (which is only useful for a few days, at most) from her doctor. But when she went to get it filled during her lunch break, the pharmacist at the drug counter told her his religion precluded his filling it, or dispensing any form of contraception. He told her to come back that night, when another pharmacist would take care of her instead. Under Washington law, it is a pharmacist’s “duty to deliver lawfully prescribed drugs or devices to patients,” but the issue of conscientious objections has been raised in the courts and the legislature this year. So the question was whether the pharmacist had the right to do what he did. Other questions Deutchman proposed were: what if another pharmacist was there who could fill the prescription? What if this happened in a rural area where the nearest other pharmacy was 10 miles away? And, what if she worked at night, so couldn’t come back later when someone else was on duty?
The group that talked about this pointed out that, while doctors can choose their specialty, there is only one type of pharmacist – so avoiding the conflict is much harder for them.
The second example, based on a recent California Supreme Court case, pitted the right of a same-sex couple not to face discrimination based on their sexual orientation against a doctor’s freedom of speech and religion. That one involved the lesbian couple that wanted to have a baby. While, once again, the idea that another doctor in the infertility clinic might be able to do the procedure instead came up, Deutchman then asked “what if it was a solo practice?” She also asked if opinions would be different if the doctor’s objection was not that the couple were lesbians, but that they were unmarried?
Deutchman said the court had ruled that this was not a free speech case at all, and that even if it were, the doctor would likely lose. The justices suggested the clinic could either not perform the procedure at all, or make sure there was a doctor on staff that would not discriminate against the women.
The third case, which also came up in California after their Supreme Court struck down the law against same-sex marriages, largely paralleled the first two, and Deutchman described the different ways counties had dealt with the issue, from not having clerks perform any marriages at all, to having someone available who did not object to same-sex marriages on staff, to welcoming all comers, as San Francisco has.
The fourth case posed a somewhat different problem – schools are required to allow religious clubs if they have any at all, and the right of students to form one that was based on Christian beliefs (as the Kent students had) was unquestioned. But some clubs receive money from the ASB, faculty or other adult support, and additional benefits to the religious group were refused. So the question was whether that was discrimination based on their religious beliefs, or if the school was acting properly because the club excluded non-Christians from participating. In this case, the 9th Circuit Court of Appeals found in the school district’s favor.
All four questions involved the First Amendment’s “free exercise of religion” guarantee in instances where it comes into conflict with other constitutional rights, such as being free from discrimination or freedom of speech. According to ADL regional director Ellen Bovarnick, these subjects are of particular interest to the Jewish community, which, as a minority community in this country historically has felt itself on the short end of all these issues.
“The ADL cares vitally about these issues and believes they are important to the Jewish community,” Bovarnick said, “and welcomes a vibrant debate about them.”
While the discussion groups did not reach consensus on how the questions should be resolved, organizers stressed that the real purpose of the event was to foster a wide-ranging discussion.